Surveillance Court Rules That N.S.A. Can Resume Bulk Data Collection

NSA-binocularsThe Foreign Intelligence Surveillance Court ruled late Monday that the National Security Agency may temporarily resume its once-secret program that systematically collects records of Americans’ domestic phone calls in bulk.

The program had lapsed on June 1, when a law on which it was based, Section 215 of the U.S.A. Patriot Act, expired. Congress revived that provision on June 2 with a bill called the U.S.A. Freedom Act, which said that the provision could only be used for bulk collection for six months.

The six-month period was intended to give intelligence agencies time to move to a new system in which the phone records would stay in the hands of phone companies, though the agency could still gain access to them.

Shortly before Congress passed the U.S.A. Freedom Act, the United States Court of Appeals for the Second Circuit, in New York, ruled that Section 215 could not legitimately be interpreted as permitting bulk collection at all.

Congress did not add anything to the bill contradicting the Second Circuit ruling, leaving it unclear whether the program could resume in the interim. As soon as President Obama signed the bill, his administration applied to restart the program for six months.

In a 26-page opinion, Judge Michael W. Mosman said that the Second Circuit was wrong and that the program could resume.

“Second Circuit rulings are not binding on the F.I.S.C., and this court respectfully disagrees with that court’s analysis, especially in view of the intervening enactment of the U.S.A. Freedom Act,” he wrote.

In any event, Judge Mosman added, the passage of the bill was evidence that Congress had intended to allow bulk collection to continue for six months.

Judge Mosman, who normally serves in the Federal District Court for the District of Oregon when not serving on the spy court, also rejected a challenge to the program by Ken Cuccinelli, the former attorney general of Virginia, who said that it was illegal.

[New York Times]

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